Elections Have Positive Consequences for Religious Liberty at the EEOC

Elections Have Positive Consequences for Religious Liberty at the EEOC


The Equal Employment Opportunity Commission (EEOC) is a quasi-independent federal agency charged with enforcing federal employment discrimination laws. On September 15, the EEOC filed suit against the Kroger Company, charging that it violated Title VII of the Civil Rights Act of 1964. In this case, the Kroger grocery store in Conway, Arkansas issued new aprons to employees that featured a small, rainbow-colored heart emblem. Two employees perceived this as an endorsement of the LGBT movement, and they objected on religious grounds.

Sharon Fast Gustafson, General Counsel of the EEOC, explained on yesterday's Washington Watch radio program that religion is a protected category in the Civil Rights Act, like race or sex, but with an added twist. "If the applicant or employee has a religious belief or practice that requires some kind of religious accommodation, the law requires the employer to give that accommodation to the employee unless it would present some sort of undue hardship to the business."

The two Kroger employees asked if they could either wear a different apron or wear their name tag over the rainbow emblem. Kroger refused this accommodation and ended up firing the two employees -- leading to the EEOC suit in support of the employees. As Gustafson pointed out, it would be hard for Kroger to claim an "undue hardship," given that "it was a zero-cost accommodation that was requested."

During the Obama administration, it would have been hard to imagine the EEOC taking the side of people with orthodox Judeo-Christian views -- especially ones who, as Gustafson put it, "had religious beliefs that homosexual acts are sins and that they could not do anything to celebrate that or to endorse it." Under the influence of Commissioner Chai Feldblum, a self-identified lesbian radical activist appointed by President Obama, it was the EEOC that first took the position that sexual orientation and gender identity discrimination were forms of "sex" discrimination in violation of Title VII. In fact, the EEOC was the plaintiff that sued a religiously-oriented funeral home on behalf of a transgender employee, in one of the cases that was consolidated under Bostock v. Clayton County, the outrageous 2020 Supreme Court decision that adopted the Obama EEOC's view.

Similarly, the Obama-era EEOC in 2015 asserted that a Catholic prep school was guilty of "sex" discrimination when it fired a band teacher after learning he planned to "marry" a same-sex partner. They were not as sympathetic to religious employees, however. In 2013, a public school teacher was fired after giving a Bible to a student who requested it, and he filed a complaint with the EEOC. The agency dismissed his complaint without doing the required investigation, until First Liberty Institute put pressure on them to re-open the case.

We trust that the Kroger lawsuit means that the EEOC has taken a turn in the direction of consistent support for religious liberty.